Law Commons^™

Fencing Cyberspace: Drawing Borders In A Virtual World, Maureen A. O'Rourke

Faculty Scholarship

In the last few years, the Internet has increasingly become a source of information even for the historically computer illiterate. The growing popularity of the Internet has been driven in large part by the World Wide Web (web). The web is a system that facilitates use of the Internet by helping users sort through the great mass of information available on it. The web uses software that allows one document to link to and access another, and so on, despite the fact that the documents may reside on different machines in physically remote locations. The dispersion of data that is …

Arbitration In Banking And Finance, William W. Park

Faculty Scholarship

The world's bifurcation into debtors and creditors has created yet another class of people: those involved in resolving disputes between lenders and borrowers. To promote reliability in financial dispute resolution, credit agreements have generally provided that potential controversies will be submitted either to courts in the bank's home jurisdiction, or to courts of a major money center such as London or New York.

Bridging The Gap In Forum Selection: Harmonizing Arbitration And Court Selection, William W. Park

Faculty Scholarship

More than one thoughtful international business manager has been haunted by the fear that foreign judges might not always respect Moses' admonition to impartiality., Concern that the other side will have an unfair advantage in its home court has often driven lawyers to include in international contracts one of two forum selection devices:2 an arbitration agreement entrusting the controversy to a private decision-maker or a courtselection clause granting adjudicatory power to courts at a designated location.3 Both mechanisms can enhance political and procedural neutrality, thereby facilitating business ventures when parties have a mutual mistrust of each other's courts and a …

Cross-Border Securitization: Without Law, But Not Lawless, Tamar Frankel

Faculty Scholarship

The Article discusses two puzzles posed by cross-border securitization.

First, why do the innovators in this area "give away" their creations through publications and other means rather than attempt to extract licensing fees by registering copyrights, patents, and trade names? The Article shows that innovators benefit from "giving away" their innovations through fees of the first clients or future clients to a greater extent than through licensing fees. Second, how can securitization markets develop under fragmented and unpredictable laws? The Article argues that cross-border securitization is flourishing under a "law merchant," which is later incorporated into domestic laws. In fact, …

Striking A Delicate Balance: Intellectual Property, Antitrust, Contract And Standardization In The Computer Industry, Maureen A. O'Rourke

Faculty Scholarship

Shortly before the Second Intermational Harvard Conference on Internet & Society, the Department of Justice ("DOJ") brought a widely publicized suit against the Microsoft Corporation. In its complaint, the DOJ charged Microsoft with engaging in a variety of antitrust wrongs connected with its alleged monopoly position in the market for personal computer ("PC") operating system software. The Conference panel on Antitrust and the Internet, which had planned to focus on how antitrust law affects standard-setting efforts and the implications for the Intermet, quickly abandoned that topic in favor of discussion of the Microsoft suit.

A National Bill Of Patients' Rights, George J. Annas

Faculty Scholarship

In one of the most enthusiastically received proposals in his January State of the Union address, President Bill Clinton called on Congress to enact a national bill of rights in health care. The President said, “You have the right to know all your medical options, not just the cheapest. You have the right to choose the doctor you want for the care you need. You have the right to emergency room care, wherever and whenever you need it. You have the right to keep your medical records confidential.”

Human Rights And Maternal-Fetal Hiv Transmission Prevention Trials In Africa, George J. Annas

Faculty Scholarship

The human rights issues raised by the conduct of maternal-fetal human immunodeficiency virus transmission trials in Africa are not unique to either acquired immunodeficiency syndrome or Africa, but public discussion of these trials presents an opportunity for the United States and other wealthy nations to take the rights and welfare of impoverished populations seriously. The central issue at stake when developed countries perform research on subjects in developing countries is exploitation. The only way to prevent exploitation of a research population is to insist not only that informed consent be obtained but also that, should an intervention be proven beneficial, …

In Memoriam: Memorial Tributes For Professor Elizabeth B. Clark, Ronald A. Cass, Thomas A. Green, Stanley N. Katz, Katherine Stone, Pnina Lahav, William W. Park, Aviam Soifer, David J. Seipp

Tributes

Today we come together to remember Professor Elizabeth Battelle Clark, Betsy to all who knew her. We were shocked to hear of her illness, inspired by the intensity of her fight against it, and deeply saddened by her death. We have come together before to mourn her loss. Now we gather once more to celebrate our good fortune to have known Betsy and to share our remembrances of her.

The Aba's Proposed Moratorium On The Death Penalty: The American Bar Association And Federal Habeas Corpus, Larry Yackle

Faculty Scholarship

The ABA explains its proposed moratorium on capital punishment in part on the ground that recent decisions rendered by the Supreme Court and legislation enacted by Congress limit the ability of prisoners under sentence of death to challenge their sentences in the federal courts.' According to the ABA, the Supreme Court has placed numerous hurdles in the path of prisoners who apply to the federal courts for a writ of habeas corpus, claiming that their convictions were obtained or their sentences were imposed in violation of federal law. Congress, for its part, has added even more barriers in Title I …

Archibald Cox: Teacher, David J. Seipp

Faculty Scholarship

Archie Cox is a teacher. He taught generations of law students at Harvard Law School and, more recently, at Boston University School of Law. He left the classroom on three occasions, reluctantly, when first President Truman, then President Kennedy, then President Nixon's Attorney General called Professor Cox to Washington to play a part on the national stage. In his first weeks as Watergate Special Prosecutor, Cox carried with him a stack of blue books, Labor Law examinations he still had to grade (p. 263). In the public eye, his straight-backed demeanor, his familiar crew cut, half-glasses, bow tie, and tweeds …

The Shadowlands: Secrets, Lies, And Assisted Reproduction, George J. Annas

Faculty Scholarship

Americans love babies and technology, and most Americans applaud the ability of the new assisted-reproduction techniques to help infertile couples have children. But these techniques have also given birth to a wide variety of new legal issues, including questions about the identity of the mother and father of the child, the enforcement of preconception contracts, the elements of informed consent, and the disposition of frozen embryos. After almost 20 years of experience and the growth of infertility clinics into a multibillion-dollar industry, it is time to consider establishing national standards and a federal regulatory scheme. Two recent court cases, one …

Defending The Middle Way: Intermediate Scrutiny As Judicial Minimalism, Jay D. Wexler

Faculty Scholarship

In the last few years, Court-watchers have been particularly busy critiquing the constitutional decisions of the splintered Rehnquist Court. Two of the recurring critiques have posited that the Justices are overly activist and that their opinions are needlessly confusing. American Lawyer's Stuart Taylor, for example, has decried both the "jurisprudential mess" of the Court's recent redistricting decisions' as well as the disturbing activism that Taylor believes marks each of the Equal Protection decisions of the 1995-96 Terman activism that has led him to wonder "whether there is any life at all left in the idea of judicial restraint."' Eva Rodriguez …

Managing Legal Change: The Transformation Of Establishment Clause Law, Hugh Baxter

Faculty Scholarship

One perspective on the Supreme Court is to see it as a manager of legal change. At a particular time, and with respect to a particular issue of federal law, a majority of Justices may coalesce around a law-transforming project. Because the Court enjoys nearly complete control over its docket, such a coalition of Justices may select carefully the cases most advantageous to the law -transforming project. And because the Court's pronouncements on matters of federal law are binding on all other interpreters, the Court may enforce its legal transformation by exercising its disciplinary powers of review. The Court's implementation …

Toleration, Autonomy, And Governmental Promotion Of Good Lives: Beyond 'Empty' Toleration To Toleration As Respect, Linda C. Mcclain

Faculty Scholarship

This Article considers discontent with liberal toleration as being both too empty, because it fails to secure respect and appreciation among citizens who tolerate each other, and too robust, because it precludes government from engaging in a formative project of helping citizens to live good, self-governing lives. To meet these criticisms, the Article advances a model of toleration as respect, as distinguished from a model of empty toleration, drawing on three rationales for toleration: the anti-compulsion rationale, the jurisdictional rationale, and the diversity rationale. It defends toleration as respect against some common criticisms-emanating from feminist, civic republican, and liberal perfectionist …